Veloz-Luvevano v. Lynch, 799 F.3d 1308

Background

Manuel Veloz-Luvevano, a Mexican national, entered the U.S. in 1998 and later pled guilty (Feb. 2010) in Colorado to criminal impersonation, Colo. Rev. Stat. § 18-5-113(1)(d), a class 6 felony.
Immigration proceedings were initiated for unlawful presence and he conceded removability; he applied for cancellation of removal but the government moved to pretermit because his conviction was a crime involving moral turpitude (CIMT).
He accepted pre-conclusion voluntary departure in exchange for waiving appeal rights; he failed to depart by the deadline and later filed a motion to reopen claiming ineffective assistance of counsel for failing to submit documents proving his offense was not a CIMT and that his waiver was not knowing and voluntary.
The IJ denied reopening as untimely and alternatively held the conviction was a CIMT; the BIA affirmed, concluding § 18-5-113(1)(d) is categorically a CIMT because it inherently involves fraud.
Veloz-Luvevano argued (1) the statute could punish conduct not involving moral turpitude in his case, (2) counsel was ineffective and caused prejudice, (3) his waiver was involuntary, and (4) prosecutorial discretion was improperly exercised; the BIA rejected these and the Tenth Circuit denied review.

Issues

Issue	Veloz-Luvevano's Argument	Lynch's Argument	Held
Whether Colo. Rev. Stat. § 18-5-113(1)(d) is categorically a CIMT	His specific conduct lacked fraudulent intent or harm, so categorical inquiry should allow consideration of underlying facts	The statute necessarily involves deceit/fraud and thus is categorically a CIMT under the categorical approach	The statute is categorically a CIMT because fraud is inherent; underlying facts cannot negate elements admitted by plea
Whether counsel’s failure to submit documents amounted to ineffective assistance causing prejudice	Counsel’s omission prevented showing eligibility for cancellation; he would not have accepted voluntary departure	Even with documents, he remains ineligible for cancellation because of categorical CIMT; no prejudice	No prejudice; ineffective assistance claim fails because the conviction bars relief regardless of the omitted documents
Whether his waiver of appeal was knowing and voluntary and prejudicial	Waiver was not knowing/voluntary and thus he was deprived of appeal	Record shows he was provided an interpreter and knowingly accepted voluntary departure; even if involuntary, he got the only relief available	Waiver was knowing; even assuming not, no prejudice because voluntary departure was the only available relief
Whether prosecutorial discretion review or collateral attack on the conviction is available	Government improperly refused prosecutorial discretion; alternatively seeks to challenge conviction validity	IJs/BIA lack authority to review prosecutorial discretion; collateral attack on state conviction improper in immigration proceedings	No review of prosecutorial discretion; collateral attacks on state conviction impermissible here (state relief required)

Key Cases Cited

Wei v. Mukasey, 545 F.3d 1248 (10th Cir. 2008) (standard of review for BIA denial of motion to reopen)
Maatougui v. Holder, 738 F.3d 1230 (10th Cir. 2013) (BIA abuse of discretion standards)
Rodriguez-Heredia v. Holder, 639 F.3d 1264 (10th Cir. 2011) (categorical approach to CIMT is a legal question reviewed de novo)
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (explaining the categorical approach in immigration consequences context)
Wittgenstein v. INS, 124 F.3d 1244 (10th Cir. 1997) (definition of moral turpitude; fraud-type crimes are CIMTs)
Osei v. INS, 305 F.3d 1205 (10th Cir. 2002) (ineffective assistance of counsel can implicate due process in removal proceedings)
McCarthy v. United States, 394 U.S. 459 (1969) (guilty plea is an admission of the offense and its elements)
Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013) (every conviction under a statute must involve moral turpitude to be a categorical CIMT)